Vadasz v Gadaleta Steel Fabrication P/L

[2016] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

VADASZ v GADALETA STEEL FABRICATION P/L

[2016] SASCFC 21

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice S Doyle)

7 March 2016

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

Application for Permission to Appeal

The applicant was sued in the Magistrates Court for monies due under a contract for welding steel piling. One issue at trial was whether the hourly rate of $75 said by the respondent to have been agreed at the outset applied to the minority of work undertaken by apprentices as opposed to qualified boilermakers. On appeal to a single Judge, the Judge rejected the applicant’s contention that the $75 hourly rate related to work by qualified boilermakers and not by apprentices. The applicant seeks permission to appeal to the Full Court against that judgment on the sole ground that the Judge erred in that respect.

Held by the Court:

1.       Permission granted (at [7]).

VADASZ v GADALETA STEEL FABRICATION P/L
[2016] SASCFC 21

Full Court:  Blue, Stanley and Doyle JJ

THE COURT:   

1. This is an application for permission to appeal against a judgment by a Judge of this Court on an appeal against a judgment in the Magistrates Court against the applicant.

2. The applicant, a piling contractor, had entered into a contract to supply and install the steel piling for the construction of a new hall at a school. The applicant in turn retained the respondent, a welding contractor, to weld steel supplied by the applicant to create the steel piles and place them on site for the applicant to drive them into the ground. The tradespersons qualified to undertake welding as part of construction are boilermakers. The respondent employed a number of qualified boilermakers to undertake welding. It also engaged apprentices who undertook welding from time to time under the supervision of its qualified boilermakers.

3. The contractual arrangement between the applicant and the respondent was relatively informal and largely oral. The Magistrate found that the contract price for the welding services was to be based on an hourly rate multiplied by the number of hours spent. The Magistrate found that there was a discussion between the applicant and the respondent in which respondent said that its hourly rate for welding services was $75. While these findings were challenged on the appeal to the Judge, the applicant does not seek to challenge them on appeal to the Full Court. It was common ground at trial that there was no discussion about apprentices before or when the contract was entered into, or indeed at any time until after completion of the works.

4. The respondent issued to the applicant invoices progressively over the course of the job totalling $70,168. The applicant paid $10,000 and the respondent sued the applicant in the Magistrates Court for the balance. The applicant raised numerous defences to the amount of the claim. The Magistrate found that the respondent had been overcharged by $1,497 and entered judgment in favour of the respondent for the balance of the claim of $58,671. One of the applicant’s defences was that the rate of $75 per hour (if agreed, which he denied) applied to work undertaken by qualified boilermakers and not by unqualified apprentices. The Magistrate in her reasons for judgment identified this issue but did not subsequently address it.

5. On the appeal to the Judge, the applicant reiterated his contentions made before the Magistrate. The Judge allowed the appeal to the limited extent of reducing the judgement to $55,619, but otherwise rejected the applicant’s contentions. The Judge rejected the applicant’s contention that the hourly rate if agreed applied to work undertaken by qualified boilermakers and not by unqualified apprentices.

6. The applicant seeks permission to appeal to the Full Court against the judgment of the single Judge on the single ground that the Judge erred in concluding that the agreed hourly rate applied to work undertaken by unqualified apprentices alike. The applicant does not seek to appeal against the rejection by the Judge of his other contentions.

7. Permission is granted to the applicant to appeal on the single ground that the Judge erred in concluding that the agreed hourly rate applied to work undertaken by qualified boilermakers and by unqualified apprentices alike. It is emphasised that this permission is confined to that single ground.